Hallinan v Western People Newspaper (Represented by Ronan, Daly, Jermyn - Solicitors)
This dispute involves a claim by Mr. Hallinan that he is entitled to the same rate of remuneration as that paid by the respondent to four named comparators, in accordance with section 29 of the Employment Equality Act, 1998.
2.1 The complainant is a freelance journalist and has a physical disability. He furnished an article on disability issues to the respondent for inclusion in its weekly newspaper from September, 1997 until October, 2002. The complainant received €19 per article and the column was published every two weeks. The complainant contends that he received a lower rate of remuneration than four named comparators with whom he performs like work for the purposes of section 29 of the Act and that the difference in the rate of remuneration is because of his disability. He referred a complaint to the Office of the Director of Equality Investigations on 13 March, 2003. In accordance with her powers under the Act, the Director delegated the complaint to Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions under Part VII of the Act. The respondent submits that a finding of like work cannot be made by the Equality Officer as the complainant is a freelance journalist and is not employed under a contract of employment as required by the Act.
2.2 This Office does not have jurisdiction to investigate a claim for equal pay unless the complainant is an employee as defined at section 2 of the Employment Equality Act, 1998. Written submissions were received from both parties and the Equality Officer decided to hold a hearing on the preliminary issue of whether or not the complainant was employed in accordance with the Act. This hearing took place on 18 September, 2003.
3. SUMMARY OF COMPLAINANT'S CASE
The complainant states that he approached the respondent in 1997 with a proposal that the newspaper might carry a dedicated column to disability issues. The respondent agreed that this was a good idea and the complainant furnished an article for inclusion in the Western People newspaper every fortnight between September, 1997 and October, 2002. He received €19 per article he submitted during this period. The complainant furnished copies of three letters from the respondent dated 12 August, 4 September, and 22 October, 1997 which, he submits, constitute a contract of employment between the parties.
4. SUMMARY OF RESPONDENT'S CASE
The respondent submits that the complainant is not an employee for the purposes of the Employment Equality Act, 1998 and therefore cannot pursue a claim for equal remuneration. In support of this argument it states that the complainant was paid a fixed fee for each article he submitted. Payment was made on foot of invoices submitted by the complainant and no PAYE or PRSI deductions were taken from the payment1. In addition, the complainant had total flexibility as regards the number of hours he worked on the article and he was not required to report to the respondent's premises for duty each day2. The complainant was free to decide his own holidays and time off without seeking the permission of the respondent and he did not receive payment for holidays or public holidays3. The complainant was not entitled to sick pay and was not included in any of the respondent's pension schemes4. The complainant was at liberty to work for other newspapers at all times and he was not required, nor did he attend, any meetings of journalists or other staff employed by the respondent. The respondent submits that the complainant was in business in his own account as he was able to earn as much or as little as he wished in his capacity as a freelance journalist. Finally, the respondent submits that it exercised little control over his activities relative to those of the journalists employed by it.5.
5. CONCLUSIONS OF EQUALITY OFFICER
5.1 The issue for decision by me is whether or not the complainant was employed under a contract of employment as defined by section 2 of the Employment Equality Act, 1998, giving him an entitlement to claim equal pay for like work which may be investigated by this Office. In reaching my decision I have taken into account all of the evidence, written and oral, submitted by the parties.
5.2 Section 2 of the Employment Equality act, 1998 provides, inter alia, "employee"....., means a person who has entered into or worked under (or, where the employment has ceased, entered into or worked under) a contract of employment;"
"contract of employment" means .....
(a) a contract of service or apprenticeship, ......"
It follows therefore that the complainant must have been employed under a contract of service to enable him pursue his claim.
5.3 The question of whether a particular employment is to be regarded as a contract of service or a contract for services has been the subject of quite a number of decisions by the Courts in this jurisdiction. The Supreme Court held in Henry Denny & Sons (Ireland) Ltd. v The Minister for Social Welfare6 that the Appeals Officer was entirely correct in holding that he should not confine his consideration to what was contained in the written contract, but should have regard to all the circumstances of the employment in question. In that judgement Murphy J stated that the question of whether the claimant "was retained under a contract of service depends essentially on the totality of contractual relationship express or implied between her and the appellant...". In the same judgement Keane J noted that whilst the extent and degree of control which was exercised by one party over another in the performance of the work had been regarded as decisive in the past, later authorities demonstrated that the control test did not always provide satisfactory guidance. He then went on to hold that:
"It is accordingly clear that while each case must be determined in the light of its particular facts and circumstances, in general a person will be regarded as providing his or her services on a contract of service and not as an independent contractor where he or she is performing those services for another person and not for himself or herself. The degree of control exercised over how the work is to be performed, although a factor to be taken into account, is not decisive. The inference that a person is engaged in business on his or her own account is more readily drawn where he or she provides the necessary premises or equipment or some other form of investment, where he or she employs others to assist in the business and where the profit which he or she derives from the business is dependent on the efficiency with which it is conducted by him or her."
5.4 Applying the above to the instant case I have reached the following conclusions. I have examined the letters furnished by the complainant dated 12 August, 4 September and 22 October, 1997. These documents state that the publication of a column in the newspaper is a good idea, that the respondent will pay the complainant €19 (£15) for each article, that it will be published every second week, that the complainant should submit invoices on a monthly basis seeking payment and some comments about securing a sponsor for the column. The significance of the contents of these letters as regards my investigation is that clarity existed from the outset of the working relationship between the parties that the complainant would be paid a fee per article and that he should submit an invoice seeking payment. There was no suggestion that the complainant would be on a regular salary or wage and no such arrangement ever ensued. The complainant confirmed in the course of the hearing that the respondent did not instruct him as to (i) the amount of time he should spend on his articles, (ii) their subject matter, except that they were on the general topic of disability, (iii) the length of the articles, other than to suggest they should be around 700-800 words. The complainant had full discretion on these items. The complainant accepted that the only control exercised by the respondent was that Mr. Hallinan was required to submit the text of his article by the Wednesday preceding publication of the newspaper. The operation of such a deadline does not, in my opinion, constitute any significant degree of control by the respondent over the complainant - in that it sets out when the article should be completed, not how it should be done. I note that if this deadline was not met, the paper would be published without the column.
5.5 The complainant also confirmed that he was free to furnish articles to other publications and newspapers during the period he was involved with the respondent, although he did not do so. In addition, he could acquire assistance from other sources to complete the article without any recourse to the respondent, although he again chose not to do so. He was therefore not obliged to perform the work personally and could engage the assistance of another person without the approval of the respondent. It is clear that the complainant had considerable discretion in both these areas, features that one would not normally expect to find in a contract of service. The complainant acknowledged that he did not receive payment for annual leave or public holidays during the period in question, and confirmed that he was not required to seek the respondent's permission when he went on vacation. He also confirmed that if the absence was pre-planned he would submit an article for the edition of the newspaper that was due to be published during his absence. Nobody compiled the column on his behalf during his absence.
5.6 The complainant confirmed that he was paid a fee per article. Payment was made by the respondent on foot of periodic (bi-monthly) invoices submitted by Mr. Hallinan. No deductions were made from the payment for PRSI or PAYE. The complainant stated that he was responsible for returning this income to the Revenue Commissioners. He accepted that he was not covered by the respondent's sick pay scheme or pension scheme and that these matters had never been raised by him. In addition, he never attended any staff meetings in the respondent's premises, indeed he only visited the premises at the beginning of the arrangement with the respondent to deliver and collect computer discs. This requirement became unnecessary after a while because his articles were transmitted via e-mail. Whilst the articles were published on a regular basis, the newspaper would have been printed in the event that the complainant had not adhered to the deadline. The articles were prepared in the complainant's residence on equipment owned by him - the respondent did not make any financial contribution towards it. Neither did it provide him with any other equipment necessary for the preparation of the column. In light of the foregoing I am of the opinion that the complainant's working relationship with the respondent was not an integral part of the business of the newspaper.
5.7 The complainant stated that it was necessary to conduct some research when preparing the articles. He confirmed that any expenses incurred by him in this regard - traveling, phones, internet use, postage - were included in the €19 fee he received for each column. The amount of profit he could derive from the arrangement was therefore contingent on how low he kept the outlay associated with this aspect of his work. Whilst the amounts involved might be considered small, they cannot detract from the fact that this opportunity to maximize profit, or minimize any loss, from the venture was available to the complainant.
5.8 Taking into consideration all of my comments in the preceding paragraphs I am of the view that the features of the employment relationship between the parties are not consistent with a contract of service and point to a contract for services. The complainant does not therefore fall within the requirements of the Act to be employed under a contract of employment.
I find that the complainant is employed under a contract for service and is not employed under a contract of employment as defined at section 2 of the Employment Equality Act, 1998. I therefore have no jurisdiction to investigate a claim by the complainant for equal remuneration for like work under the Act.
9 October, 2003
1 McDonnell v Melchert Electronics UD989/1985
2 In re Sunday Tribune Ltd. High Court  IR 505
3 O'Riain v Independent Newspapers Ltd. UD134/1978
4 O'Riain v Independent Newspapers Ltd. UD134/1978 and McDonnell v Melchert Electronics UD989/1985
5 Henry Denny & Sons (Ireland) Ltd v Minister for Social Welfare Supreme Court  1 IR 34 O'Coindealbhain v Mooney High Court  1 IR 422
6  1 IR 34